County appeals new rules tied to stormwater permit

Development requirements called costly, illegal

Cary Armstrong, Source Control Specialist with the Clark County Department of Environmental Services, shows a well maintained stormwater site in a Vancouver neighborhood, Thursday, April 7, 2011. (Steven Lane/The Columbian)

Clark County has appealed new state environmental regulations to the Washington Pollution Control Hearings Board, challenging low-impact development requirements and other rules as costly and illegal.

The new regulations, set to take effect in 2015, were handed down by the Department of Ecology as part of the county's stormwater permit.

The rules go beyond stormwater regulations meant to control polluted runoff. The county has been fighting those rules and is awaiting a ruling from the state Court of Appeals.

While Clark County was alone among Western Washington governments in challenging the first set of regulations, it has been joined by Pierce, King and Snohomish counties in fighting the new rules.

Those three counties have also filed appeals to the Pollution Control Hearings Board, asking the board to tell the Department of Ecology to lessen permit requirements.

No hearing date has been set, said Kevin Gray, director of Clark County's Department of Environmental Services.

Under the Clean Water Act, governments that operate a separate storm sewer system must have a National Pollutant Discharge Elimination System permit. The Department of Ecology issues the permits. Clark County -- along with King, Pierce and Snohomish counties and the cities of Tacoma and Seattle -- were required to get permits in 1999 and are known as the "Phase 1" permit holders. In 2007, the state expanded permits to approximately 80 "Phase 2" counties and cities in Western Washington, including Vancouver, Camas, Battle Ground and Washougal.

On Aug. 1, the Department of Ecology issued new performance standards for "Phase 1" permit holders.

Gray said the standards could lead the county to require developers to use low-impact development techniques such as pervious pavement and rain gardens.

Those practices have not been sufficiently tested, the county argues in the appeal.

The county also challenges requirements for additional stormwater monitoring, which could cost up to $1 million, and complex watershed studies and planning that go beyond areas under the county's jurisdiction.

Those requirements are not necessary under the federal Clean Water Act, the county argues.

In Pierce County's appeal, lawyers argue meeting the new requirements would cost the county as much as $4 million a year.

"In many cases, Ecology imposed these requirements without considering their cost or balancing those costs against demonstrated water quality benefits reasonably expected to be achieved," wrote Lori Gregory and John Nelson of Foster Pepper, a Seattle firm representing Pierce County.

A ruling by the Pollution Control Hearings Board could be appealed to Superior Court.